United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
PHYLLIS J. HAMILTON United States District Judge.
motion of defendants Bayer AG, Bayer Corporation, and Bayer
Healthcare LLC (“Bayer”) to dismiss the complaint
in the above-entitled action for failure to state a claim
came on for hearing before this court on July 12, 2017.
Plaintiff Daniel Goldman appeared by his counsel Matthew
Guiney, and defendants appeared by their counsel Joshua
Fougere. Having read the parties' papers and carefully
considered their arguments and the relevant legal authority,
the court hereby GRANTS the motion.
Healthcare LLC, a Delaware limited liability company that is
wholly owned by Bayer Corporation, an Indiana corporation,
which in turn is owned by Bayer AG, markets and sells
multivitamins under the trademarked brand name "One A
Day®." Cplt ¶¶ 13-15. Among the varieties
of One A Day® vitamins are "gummy" (or edible)
multivitamins sold under the name "One A Day®
VitaCraves®." Cplt ¶¶ 20-21. These
products include “adult” and “teen”
multivitamin formulations. Cplt ¶ 22. Among these are
“adult” formulations for "energy support,
" "immunity support, " and "healthy
metabolism support;" “adult” formulations
for men and women; and “teen” formulations for
“him” and “her.” See Cplt
¶ 22 and Exhs. A-J. Bayer Healthcare LLC owns the
trademarks for One A Day® and VitaCraves®
multivitamins. Cplt ¶ 15. While the daily dose (or
"serving") of some One A Day® vitamins is one
pill or capsule per day, the container for the One A Day®
VitaCraves® indicates that the daily dose (or
"serving") for those vitamins is two
"gummies" a day. Cplt ¶ 7.
a resident of Oakland, California, filed the complaint on
February 8, 2017. The gist of the complaint is that Bayer has
"affirmatively represented" on the
"front" portion of the label on the container of
One A Day® VitaCraves® that the bottle contains a
specific number of days' worth of multivitamins (70 is
the number at issue in the complaint), but that because the
specified serving size is two "gummies, " the
bottle actually contains vitamins sufficient for only half
the number of days (35) as there are “gummies” in
the bottle. See Cplt ¶¶ 3-7.
alleges that on December 1, 2016, he purchased One A Day®
VitaCraves® from "one or more retailers in New York,
including CVS[;]" that 18 days later, on December 19,
2016, he purchased One A Day® VitaCraves® from
"one or more retailers in California, including
CVS[;]" and that he relied on the statement on the
“front” portion of the label on each container
that the bottle contained "70 Gummies, " which he
interpreted to mean 70 days' worth of vitamins because
the product brand name is "One A Day®." Cplt
¶¶ 11-12. Plaintiff alleges that the representation
on the "front" portion of the label is
“illegal and deceptive." Cplt ¶ 8.
court takes judicial notice of the following. The One A
Day® VitaCraves® container is round; the label wraps
around the container, with approximately one-half inch of
space between the beginning of the label and the end; because
the container is round, only a portion of the label is
visible and readable at any given time; and the label
provides information about the multivitamins inside the
asserts that the label is "deceptive" because a
reasonable consumer looking at the "front" portion
of the label - the part facing outward when the product is
sitting on the store shelf (assuming the store clerk
positioned it with the brand name facing exactly outward), or
what plaintiff refers to as “the principal display
panel, ” Cplt ¶ 40 - will not see the remaining
portion of the label that is affixed to the round container.
Plaintiff alleges that a reasonable consumer looking at the
“front” portion of the label will conclude from
the brand name (“One A Day®”) and the
notation “70 Gummies” that the bottle contains 70
days' worth of multivitamins. Cplt ¶ 6.
claims that he was "injured" because the
recommended serving is two “gummies” a day, and
the bottles therefore actually contain only 35 days'
worth of vitamins, not 70 days' worth as he thought when
he purchased them. Cplt ¶¶ 42-43. He alleges that
he and other consumers purchasing this line of multivitamins
have actually paid "precisely twice as much for the
product in reliance on the misrepresentation about the
quantity of the product being purchased." Cplt ¶
asserts five causes of action: (1) violation of
California's Consumer Legal Remedies Act, Cal. Civ. Code
§ 1750, et seq. ("CLRA") (on behalf of a
proposed California class); (2) unlawful/unfair/fraudulent
business acts and practices, in violation of California
Business & Professions Code § 17200
("UCL") (on behalf of a proposed California class);
(3) violation of New York's Deceptive Acts or Practices
Law, N.Y. Gen. Bus. Law ("NYGBL") § 349 (on
behalf of a proposed New York class); (4) an
"alternative" claim of unjust enrichment (on behalf
of a proposed "national" class); and (5) an
"alternative claim" of breach of express warranty
under California common law (on behalf of a proposed
California class). Bayer now seeks an order dismissing the
complaint for failure to state a claim.
motion to dismiss under Rule 12(b)(6) tests for the legal
sufficiency of the claims alleged in the complaint. Ileto
v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003).
Under the minimal notice pleading requirements of Federal
Rule of Civil Procedure 8, which requires that a complaint
include a "short and plain statement of the claim
showing that the pleader is entitled to relief, "
Fed.R.Civ.P. 8(a)(2), a complaint may be dismissed under Rule
12(b)(6) if the plaintiff fails to state a cognizable legal
theory, or has not alleged sufficient facts to support a
cognizable legal theory. Somers v. Apple, Inc., 729
F.3d 953, 959 (9th Cir. 2013).
the court must accept as true all the factual allegations in
the complaint, legally conclusory statements, not supported
by actual factual allegations, need not be accepted.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The
complaint must proffer sufficient facts to state a claim for
relief that is plausible on its face. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations
and quotations omitted). A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678 (citation omitted). Determining whether a complaint
states a plausible claim for relief is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679. "[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged - but it has not
'show[n]' - 'that the pleader is entitled to
relief.'" Id. Where dismissal is warranted,
it is generally without prejudice, unless it is clear the
complaint cannot be saved by any amendment. Sparling v.
Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).
is generally limited to the contents of the complaint,
although the court can also consider a document on which the
complaint relies if the document is central to the claims
asserted in the complaint, and no party questions the
authenticity of the document. See Sanders v. Brown,
504 F.3d 903, 910 (9th Cir. 2007). That is, the court may
consider matters that are properly the subject of judicial
notice, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th
Cir. 2005); Lee v. City of L.A., 250 F.3d 668,
688-89 (9th Cir. 2001), and may also consider exhibits
attached to the complaint, see Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19
(9th Cir. 1989), and documents referenced extensively in the
complaint and documents that form the basis of a the
plaintiff's claims. See No. 84 Emp'r-Teamster Jt.
Counsel Pension Trust Fund v. Am. W. Holding Corp., 320
F.3d 920, 925 n.2 (9th Cir. 2003).
initial matter, Bayer notes that two courts (the U.S.
District Court for the Eastern District of Arkansas, and a
California state court) have dismissed cases with identical
factual allegations regarding this very same One A Day®
VitaCraves® multivitamin product. These cases are
Howard v. Bayer Corp., Case No. C-10-1662 DPM (E.D.
Ark. July 22, 2011), appeal dismissed pursuant to
stipulation (2011); and Brady v. Bayer AG, Case
No. 30-2016-000839608 CU (Orange Co. Sup. Ct. July 12, 2016),
appeal pending). Both those courts found that no
reasonable consumer would be misled by labeling that
explicitly tells consumers what they need to know about a
response, plaintiff asserts that Howard and
Brady were "incorrectly decided" under the
law of the Ninth Circuit - specifically, Williams v.
Gerber Prods. Co., 552 F.3d 394 (9th Cir. 2008) -
because they in essence require a "reasonable
consumer" to look on the side of the label for